Citation Nr: 0022884
Decision Date: 08/29/00 Archive Date: 09/01/00
DOCKET NO. 95-04 178 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to an initial evaluation in excess of 20
percent for fracture of the
T-11 vertebra.
2. Entitlement to service connection for hypertension.
REPRESENTATION
Veteran represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Maureen A. Young
INTRODUCTION
The veteran had active military service from June 1984 to
April 1988 and from September 1992 to February 1993.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1994 rating decision by the
Department of Veterans' Affairs (VA) Regional Office (RO) in
Houston, Texas. The RO denied entitlement to service
connection for hypertension, and granted entitlement to
service connection for a fracture of the T-11 vertebra with
assignment of a noncompensable evaluation effective from
February 26, 1993.
In October 1997 the RO determined that the date of the grant
of entitlement to service connection for a fracture of the T-
11 vertebra effective February 26, 1993 was clearly and
unmistakably erroneous, and determined that April 19, 1993
was the proper date. A notice of disagreement was not filed
with the above determination, and the issue is accordingly
not considered as part of the current appellate review. The
RO also granted entitlement to an initial compensable
evaluation of 20 percent for a fracture of T-11 effective
from April 19, 1993.
In June 2000 the veteran provided oral testimony before the
undersigned Board Member sitting at the RO, a transcript of
which has been associated with the claims file.
The issue of an increased evaluation for fracture of the T-11
vertebra is addressed in the remand portion of this decision.
FINDING OF FACT
The claim of entitlement to service connection for
hypertension is not supported by cognizable evidence showing
that the claim is plausible or capable of substantiation.
CONCLUSION OF LAW
The claim of entitlement to service connection for
hypertension is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
As a preliminary matter, the Board notes that VA has been
unable to obtain a portion of the veteran's service medical
records, which were not on file at the National Personnel
Records Center (NPRC) in St. Louis, Missouri.
Available service medical records show that in December 1986
the veteran's blood pressure was taken when he was seen for a
follow-up examination. His blood pressure was 138/100.
A radiologic report dated in January 1987 indicated labile
hypertension.
In October 1992 the veteran's blood pressure was taken when
he sought emergency care treatment for swelling of the left
side of his throat. At that time his blood pressure was
138/82.
VA conducted a medical examination of the veteran in June
1993. He reported he was diagnosed in 1986 with labile
hypertension. He stated that he was put on a three-month
protocol of getting his blood pressure taken every day.
The veteran further stated he was told that his blood
pressure did not warrant treatment. It was noted that he did
not take medication for hypertension. On examination the
physician and the nurse took his blood pressure. Sitting it
was 146/86, 138/82 and 157/79 respectively. Lying his blood
pressure was 148/76, and standing it was 142/88. The
diagnosis was history of labile hypertension currently
normotensive.
In March 1994 the veteran was seen by VA with complaints of
dizziness and elevated blood pressure for the previous 2 to 3
months. His blood pressure was 158/73 and 130/102. It was
noted that the veteran's wife, who is a nurse, took his blood
pressure at home. The systolic pressure was in the 140's and
the diastolic pressure was in the 90's. The diagnosis was
history of labile hypertension with no workup.
In March 1999 blood pressure taken in the A.M. was 134/104;
fifteen minutes later it was 132/100. Hypertension was
diagnosed on two occasions in March 1999.
At his personal hearing in June 2000 the veteran testified
that when he went for a check-up for a parachute injury, in-
service, the physician told him that his blood pressure was
extremely high. He stated that a series of tests were
ordered and he was seen on at least three different
occasions. Hearing Transcript (Tr.) p. 3. He further stated
that he was under study for six months because the readings
were extremely high and extremely low within 5-minute
intervals. Complete elimination of table salt was
recommended. Tr., p. 4. He reported that he was currently
undergoing treatment for hypertension and had been for the
past two years. Tr., p. 4. He stated that the treatment is
Lopressor, 50 milligrams. Tr., p. 5.
Criteria
Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a
claim for benefits under a law administered by the Secretary
shall have the burden of submitting evidence sufficient to
justify a belief by a fair and impartial individual that the
claim is well grounded.
The United States Court of Appeals for Veterans Claims
(Court) has held that a well-grounded claim is "a plausible
claim, one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible to satisfy the initial burden of § [5107(a)]."
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
The Court has also held that although a claim need not be
conclusive, the statute provides that it must be accompanied
by evidence that justifies a "belief by a fair and impartial
individual" that the claim is plausible. Tirpak v.
Derwinski, 2 Vet. App. 609, 610 (1992).
The Court has held that "where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence to the effect that the claim is 'plausible'
or 'possible' is required." Heuer v. Brown, 7 Vet. App. 379,
384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)
(citing Murphy, at 81).
The Court has held that a well-grounded claim requires
competent evidence of current disability (a medical
diagnosis), of incurrence or aggravation of a disease or
injury in service (lay or medical evidence), and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). See Epps v. Brown, 126 F.3d.
1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App.
498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).
In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in active
military service or, if pre-existing active service, was
aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991);
38 C.F.R. § 3.303 (1999).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (1999).
Where there is a chronic disease shown as such in service or
within the presumptive period under § 3.307 so as to permit a
finding of service connection, subsequent manifestations of
the same chronic disease at any later date, however remote,
are service connected, unless clearly attributable to
intercurrent causes. 38 C.F.R. § 3.303(b) (1999).
This rule does not mean that any manifestation in service
will permit service connection. To show chronic disease in
service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic."
When the disease identity is established, there is no
requirement of evidentiary showing of continuity. When the
fact of chronicity in service is not adequately supported,
then a showing of continuity after discharge is required to
support the claim. 38 C.F.R. § 3.303(b) (1999); See also
Savage v. Gober, 10 Vet. App. 488 (1997).
Service connection may also be granted for certain chronic
diseases, including hypertension, if manifest to a degree of
10 percent or more within one year from the date of
separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113,
1137 (West 1991 & Supp. 2000); 38 C.F.R. §§ 3.307, 3.309
(1999).
Pursuant to the criteria which were effective prior to
January 12, 1998 (when the criteria for rating Diseases of
the Arteries and Veins were revised), hypertensive vascular
disease (hypertension and isolated systolic hypertension) was
evaluated as follows: diastolic pressure predominantly 130 or
more warranted a 60 percent evaluation; diastolic pressure
predominantly 120 or more warranted a 40 evaluation;
diastolic pressure predominantly 110 or more or with definite
symptoms warranted a 20 percent evaluation; and diastolic
pressure predominantly 100 or more, or; minimum evaluation
for an individual with a history of diastolic pressure
predominantly 100 or more who requires continuous medication
for control of hypertension warranted a 10 percent
evaluation.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt
doctrine in resolving each such issue shall be given to the
veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§
3.102, 4.3 (1999).
Analysis
Since VA has been unable to obtain a portion of the veteran's
service medical records, it has a heightened duty to explain
its findings and conclusions, and to consider carefully the
benefit-of the-doubt rule. Pruitt v. Derwinski, 2Vet.
App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367
(1991). The evidence of record reflects that the RO pursued
service medical records pertaining to the veteran through the
NPRC, and received verification that no such records were on
file. The evidence also reflects, and the Board is
satisfied, that the RO has attempted to locate additional
pertinent evidence regarding the veteran's military service.
The analysis set forth below, therefore, was undertaken
pursuant to the duties and obligations set forth in Pruitt,
Id. and O'Hare, Id.
The Board reiterates the three requirements for a well
grounded claim: (1) medical evidence of a current disability;
(2) medical or, in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury;
and, (3) medical evidence of a nexus between the claimed in-
service injury or disease and a current disability. See
Caluza, supra.
The threshold question to be answered is whether the veteran
has presented a well-grounded claim; that is, a claim which
is plausible. If he has not presented a well grounded claim,
his appeal must fail, and there is no duty to assist him
further in the development of his claim as any such
additional development would be futile. Murphy, supra.
In this case, service medical records disclose that the
veteran had a blood pressure reading of 138/100 in 1986 and
138/82 in 1992. In 1987 labile hypertension was shown on a
radiologic report, but was not clearly indicated as a
diagnosis. This evidence does not show that the veteran had
consistently elevated blood pressure readings in service.
Furthermore, in-service medical evidence does not show he was
diagnosed with essential hypertension.
A VA examination in June 1993 revealed the veteran was
normotensive with regard to blood pressure readings. In
other words, hypertension was not found and/or diagnosed. On
March 18, 1994 he was diagnosed with a history of labile
hypertension, and there was no current diagnosis of
hypertension. His blood pressure taken on clinical
evaluation on the same date was 158/73 and 130/102. It was
noted that his blood pressure was taken at home and his
systolic pressure was in the 140's and diastolic pressure in
the 90's.
During the first post service year, that is from February
1993 to February 1994, it is not shown that the veteran's
diastolic blood pressures were predominantly 100 or more, nor
that he required continuous medication for control of
hypertension. As the Board noted above, the veteran was
found to be normotensive on VA examination in February 1993,
and when examined in June 1993, he was not under continuous
medication for hypertension. The veteran is not shown to
have had hypertension which was disabling to a compensable
degree during his first post service year.
Medical records in March 1999 showed diastolic pressure at
100 and above, and include a diagnosis of hypertension.
However, the veteran has submitted no competent medical
evidence that his hypertension has been linked to his
service. See Caluza, supra. Since the current diagnosis of
hypertension has not been linked to service by competent
medical authority, the veteran's claim of entitlement to
service connection for hypertension is not well grounded.
In addition, the only evidence, which the veteran has
submitted, which supports a finding of a nexus for his
currently diagnosed hypertension to service is his own
assertions. As a lay person, however, he cannot provide
evidence of such a nexus, inasmuch as a "lay person is not
competent to offer medical opinions." Grottveit, supra; see
also Meyer v. Brown, 9 Vet. App. 425 (1996); Edenfield v.
Brown, 8 Vet. App. 384 (1995) (en banc); Grivois, supra;
Espiritu, supra.
Neither is the Board competent to supplement the record with
its own unsubstantiated medical conclusions as to whether the
veteran's hypertension is related to a disease or injury
incurred during service. Colvin v. Derwinski, 1 Vet.
App. 171, 175 (1991).
Moreover, the veteran asserted that while in-service he
underwent a series of tests and he was under study for six
months due to hypertension. He also stated that he was
diagnosed with hypertension in 1985 at Cutler Army Hospital.
Medical reports of record from Cutler Army Hospital provide
no clear diagnosis of hypertension.
Although evidentiary assertions by the veteran must be
accepted as true for the purpose of determining whether a
claim is well-grounded, the exception to this principle is
where the evidentiary assertions are inherently incredible or
when the fact asserted is beyond the competence of the person
making the assertion. King v. Brown, 5 Vet. App. 19, 21
(1993).
This exception applies to the lay assertions by the veteran
who contends that there is an etiological link between
current hypertension and service. Even though, in this
instance, the benefit-of-the-doubt rule is more carefully
considered due to the absence of a portion of the veteran's
service medical records, the veteran is still required to
submit sufficient evidence of a causal nexus between the in-
service incurrence and his current hypertension. In the
absence of any objective medical evidence of a nexus to
service, the claim for service connection for hypertension is
not plausible, and must be denied as not well grounded.
The Court has held that if the veteran fails to submit a
well-grounded claim, VA is under no duty to assist in any
further development of the claim. 38 U.S.C.A. § 5107(a)
(West 1991); Grottveit, supra at 93; 38 C.F.R. § 3.159(a)
(1999).
The Board finds that the RO advised the veteran of the
evidence necessary to establish a well grounded claim, and he
has not indicated the existence of any post- service medical
evidence that has not already been requested or obtained that
would well ground his claim. 38 U.S.C.A. § 5103(a) (West
1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997);
Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).
The Board is aware of no circumstances in this matter which
would put VA on notice that relevant evidence may exist or
could be obtained, which, if true, would make the claim for
service connection "plausible." See generally McKnight v.
Gober, 131 F.3d 1483 (Fed. Cir. 1997).
It is noted that the RO did not specifically deny the
veteran's claim on the basis of it not being well grounded.
When the Board addresses in its decision a question that has
not been addressed by the RO, such as whether or not the
veteran's claim is well grounded, it must consider whether
the veteran has been given adequate notice to respond and, if
not, whether the veteran has been prejudiced thereby.
In light of the veteran's failure to meet the initial burden
of the adjudication process, the Board concludes that he has
not been prejudiced by the decision herein. This is because
in assuming that the claim was well grounded, the RO accorded
him greater consideration than his claim in fact warranted
under the circumstances. See Meyer v. Brown, 9 Vet. App.
425, 432 (1996);. Bernard v. Brown, 4 Vet. App. 384 (1993).
The Board views the foregoing discussion as sufficient to
inform the veteran of the elements necessary to complete his
application to reopen this claim. See Graves v. Brown, 8
Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-
78 (1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997);
Epps v. Gober, 126 F. 3d 1464 (Fed. Cir. 1997).
As the veteran's claim for service connection for
hypertension is not well grounded, the doctrine of reasonable
doubt has no application to his claim.
ORDER
The veteran, not having submitted a well-grounded claim of
entitlement to service connection for hypertension, the
appeal is denied.
REMAND
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1999) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
The Board notes that the veteran's claim for an initial
evaluation in excess of 20 percent for his fracture of the T-
11 vertebra is well grounded within the meaning of 38
U.S.C.A. § 5107(a); that is, a plausible claim have been
presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990).
In general, an allegation of increased disability is
sufficient to establish a well-grounded claim seeking an
increased rating. Proscelle v. Derwinski, 2 Vet. App. 629
(1992). The veteran's allegations concerning the severity of
his fracture of the T-11 vertebra (that are within the
competence of a lay party to report) are sufficient to
conclude that his claim is well grounded. King v. Brown, 5
Vet. App. 19 (1993).
The Court has held that where the evidence does not
adequately evaluate the current state of the condition, VA
must provide an adequate examination. Olsen v. Principi, 3
Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2
Vet. App. 629, 632 (1992)). The Court has further held that
diagnostic codes predicated upon limitation of motion do not
prohibit consideration of a higher rating based on functional
loss due to pain on use or due to flare-ups, pursuant to the
provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). Johnson
v. Brown, 9 Vet. App. 7 (1997), and DeLuca v. Brown, 8 Vet.
App. 202, 206 (1995).
In July 1997 the veteran was afforded a VA compensation
examination of his thoracic spine. The examiner noted that
the veteran took medication for control of his pain and was
suffering from intermittent muscle spasm. The VA examiner
did not address functional loss due to pain on flare-ups,
fatigability, incoordination, weakness, etc. The Board is of
the opinion that a contemporary, comprehensive orthopedic
examination addressing functional loss due to pain would
materially assist in the adjudication of this appeal.
Therefore, pursuant to VA's duty to assist the veteran in the
development of facts pertinent to his well-grounded claim of
an initial evaluation in excess of 20 percent for fracture of
the T-11 vertebra under 38 U.S.C.A. § 5107(a) (West 1991); 38
C.F.R. § 3.103(a) (1999), the case is remanded to the RO for
further development as follows:
1. The veteran has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded
to the RO. Kutscherousky v. West, 12
Vet. App. 369 (1999). In this regard,
the RO should contact the veteran and
request that he identify the names,
addresses, and approximate dates of
treatment for all medical care providers,
VA and non-VA, inpatient and outpatient,
who may possess additional records
referable to treatment of his fracture of
the T-11 vertebra. After obtaining any
necessary authorization or medical
releases, the RO should obtain and
associate with the claims file legible
copies of the veteran's complete
treatment reports from all sources
identified whose records have not
previously been secured. Regardless of
the veteran's response, the RO should
secure all outstanding VA treatment
reports.
2. The RO should arrange for a VA
special orthopedic examination of the
veteran by an orthopedic surgeon or other
appropriate specialist for the purpose of
ascertaining the current nature and
extent of severity of his fracture of the
T-11 vertebra. Any further indicated
special studies should be undertaken.
The claims file, copies of the criteria
under 38 C.F.R. §§ 4.40, 4.45, 4.59
(1999), and a separate copy of this
remand must be made available to and
reviewed by the examiner prior and
pursuant to conduction and completion of
the examination. The examiner must
annotate the examination report that the
claims file was in fact made available
for review in conjunction with the
examination.
The examiner should record pertinent
medical complaints, symptoms, and
clinical findings, including specifically
active and passive range of motion, and
comment on the functional limitations, if
any, caused by the veteran's service-
connected fractured T-11 vertebra in
light of the provisions of 38 C.F.R. §§
4.40, 4.45, 4.59. It is requested that
the examiner provide explicit responses
to the following questions:
(a) Does the service-connected fracture
of the T-11 vertebra involve only the
fractured area, or does it involve the
muscles and nerves?
(b) Does the service-connected disability
cause weakened movement, excess
fatigability, and incoordination, and if
so, can the examiner comment on the
severity of these manifestations on the
ability of the veteran to perform average
employment in a civil occupation? If the
severity of these manifestations cannot
be quantified, the examiner must so
indicate.
(c) With respect to subjective complaints
of pain, the examiner is requested to
specifically comment on whether pain is
visibly manifested on movement, the
presence and degree of, or absence of,
muscle atrophy attributable to the
service-connected disability, the
presence or absence of changes in
condition of the skin indicative of
disease due to the service-connected
disability, or the presence or absence of
any other objective manifestation that
would demonstrate disuse or functional
impairment due to pain attributable to
the service-connected disability.
(d) The examiner is also requested to
comment upon whether there are any other
medical or other problems that have an
impact on the functional capacity
affected by the service connected
disability, and if such overlap exists,
the degree to which the nonservice-
connected problem creates functional
impairment that may be dissociated from
the impairment caused by the service-
connected disability. If the functional
impairment created by the nonservice-
connected problem cannot be dissociated,
the examiner should so indicate.
The examiner should also be requested to
express an opinion as to the impact of
the veteran's fracture of the T-11
vertebra on his ability to work. Any
opinions expressed by the examiner must
be accompanied by a complete rationale.
3. Thereafter, the RO should review the
claims file to ensure that all of the
foregoing requested development has been
completed. In particular, the RO should
review the requested examination report
and required opinions to ensure that they
are responsive to and in complete
compliance with the directives of this
remand and if they are not , the RO
should implement corrective procedures.
Stegall v. West, 11 Vet. App. 268 (1998).
4. After undertaking any development
deemed essential in addition to that
specified above, the RO should
readjudicate the claim of entitlement to
an initial evaluation in excess of 20
percent for the veteran's fracture of the
T-11 vertebra.
In this regard, the RO should document
its consideration of the applicability of
the criteria under 38 C.F.R. §§
3.321(b)(1), 4.40, 4.45, 4.59 (1999), and
Fenderson v. West, 12 Vet. App. 119
(1999) as to appeals of the initial
grants of service connection and
evaluations assigned permitting
assignment of "staged" ratings.
If the benefit requested on appeal is not granted to the
veteran's satisfaction, the RO should issue a supplemental
statement of the case. A reasonable period of time for a
response should be afforded. Thereafter, the case should be
returned to the Board for further appellate review, if
otherwise in order. By this remand, the Board intimates no
opinion as to any final outcome warranted. No action is
required of the veteran until he is notified by the RO;
however, the veteran is hereby notified that failure to
report for a scheduled VA examination may result in the
denial of the increased compensation claim (38 C.F.R. § 3.655
(1999).
RONALD R. BOSCH
Member, Board of Veterans' Appeals